ICC confirmation hearing ends with prosecution-defense exchanges

MANILA, Philippines — Hearings on the confirmation of charges against former president Rodrigo Duterte ended with sharp exchanges among the defense, prosecution and the chamber itself after lead defense counsel Nicholas Kaufman raised concerns over redactions and was accused of effectively testifying on behalf of his client, who had already waived his right to appear before the court.

READ: LIVE UPDATES: Duterte ICC Hearing – Confirmation of Charges (Feb 27)

During his closing statements in the hearing before the International Criminal Court (ICC) Pre-Trial Chamber (PTC) I, Kaufman maintained that the defense counsel has already provided a comprehensive analysis of the charges before the chamber despite supposed struggles “with the various redactions that have considerably reduced [their] ability to make comprehensive submissions in open session.”

“And these redactions have not just been a few here and there, they have been so sweeping that virtually nothing intelligible remains of the 49 incidents that we have been talking about for the public to read and to understand,” said Kaufman.

Kaufman said he found these “unfair and contrary to the spirit of transparency,” claiming that he had also voiced these concerns with the prosecution as the scope of the redactions would force the defense to argue most of its substantive challenges in closed session. 

The defense lawyer claimed prosecutors assured him they would release a less redacted version of their charging document and confirmation brief. But he noted that what was released merely disclosed the names of eight alleged co-perpetrators and high-profile victims.

He argued that in doing so, the prosecution was able to selectively discuss incidents in open court while the defense remained constrained.

“This inequality of arms in the public eye expresses itself in the way the prosecution controls the narrative by arbitrarily lifting redactions so that it can make its narrative of a grand scheme of co-perpetration known to the public in open court ,while the defense can only meaningfully attack the real meat and the substance of the charges either obliquely or in closed session,” said Kaufman.

But upon the conclusion of his closing statement, Presiding Judge Iulia Antoanella Motoc reminded him that the PTC-I has already rejected this position of the defense.

“The equality of arms is ensured because the defense has access to the redacted information. It’s just not available to the public,” Motoc told him.

Testifying for Duterte

Meanwhile, Kaufman in the same closing statement talked about a particular conversation he had with his client, Duterte, on Wednesday, Feb. 25 or during the hearings’ break.

According to Kaufman, Duterte told him that he has already “accepted his fate” and that he might die in prison amid his charges before the ICC.

He even claimed that Duterte during their conversation told him that he has never murdered anyone.

“Exactly in the spirit of the waiver of this court, he looked at me solemnly, and said, ‘Mr. Kaufman, Nick, I have done my duty, and I have left my legacy. Go to court and do your job, but I can no longer help you’,” Kaufman quoted Duterte as saying during their supposed conversation.

“’I no longer remember much at all, and I can’t comment on people who I do not know, and on statistics that mean nothing to me’,” he added.

After Kaufman’s statement, ICC Senior Trial Lawyer Julian Nicholls then requested the PTC-1 to strike and not to take any account of Kaufman’s pronouncements regarding Duterte.

“None of that was responsive to arguments, which was what the last 30 minutes were about…Second of all, my friend can’t testify for his client or make a speech for his client,” he said, citing the conduct of the hearing established by the court.

He also pointed out that Duterte had already waived his right to appear before the court, and could have opted to attend the hearing if he actually wanted to be heard.

“Mr. Kaufman’s conveying this, he’s been complaining about hearsay all day. It’s not reliable but beyond that if Mr. Duterte wants to speak to the court. He should come here to make a sworn statement,” said Kaufman.

“He shouldn’t do that through his counsel so I ask that all of that be given zero weight in your terminations,” he added, addressing the chamber.

Motoc, for her part, also told Kaufman that he cannot talk about the health and capacity of Duterte as it was already addressed by the chamber.

“The defense must not make submissions on that point now. Because it is not appropriate the decision is already available in the public domain,” she added, referring to the chamber’s decision which declared Duterte fit for trial.

Meanwhile, Kaufman responded directly to Nicholls, stating that what he said was not testimony but a “pure explanation for him not coming to the hearing.”

Duterte is facing three counts of crimes against humanity before the ICC due to his administration’s bloody war against drugs—which killed at least 6,000 people based on government records; and over 30,000 based on human rights records.

After the closing statement of both the prosecution and the defense, the ICC PTC-I is then expected to determine within the next 60 days whether there are substantial grounds to move Duterte’s case forward to a full trial. /jpv